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AN 

ENaUIR Y 

7 INTO 

The political grade of the Free Coloured Population^ 

UNDER 

THE CONSTITUTION OF THE UNITED STATES, 

AND 

THE CONSTITUTION OF PENNSYLVANIA: 
IN Tli RKE P ARTS. 

BY A MEMBEll OF THB CHAMI5KRSBURG BAR. 

F A 12 T I. 

Political coiidilion of the Free Blacks before Ijie ado/ition of the Constitution. 

Amons; the subjscts of primary interesf to the people of the United 
States, at present, may be ranked the rapid increase of the African 
race unthiii their bounds. To this important iheme the public mind has 
been attracted not only by motives of humanity and justice towards a 
degraded and injured caste, but by a lively principle of self-preservation 
also, that sees in their removal from the land the only hope of perma- 
nent domestic security. Some districts of the union, where the coloured 
population is dense, are known to be kept in a state of constant anxiety 
and vif^ilance, while others, by the insurrections of that class, have, 
beeen made the theatres of the most tragical events. Whatever palli- 
atives for these enormities a sensitive moralist may find in an abstract 
view of the rights of human nature, a sense of the public safety has led 
to the adoption of measures, in those parts of the country, but little 
friendly to the comfort of the coloured classes. Diligent inquiry, we 
are told, has, on most occasions, traced the source of these evils to the 
arts and instigation o( the free class, removed from whose influence, the 
slaves are duly faithful and submissive, but, when exposed to it, easily 
made the instruments of crime. * The remedy was, therefore, deemed 
obvious; and a system of manumission, requiring the departure ol the 
negro from the State as the condition of his freedom, aided by a penal 
code tending to the extermination of the black freeman, is accordingly 
the remedial plan now under experiment in perhaps most of the South- 
ern States. It is maintained by thd^e who are immediately interested 
in this mode of redress, that, in both features, it is in accordance with 
the Federal Constitution — that it is based upon the inalienable right of 
self defence, which, in every free government, is sure of protection, and 
impliedly incorporated in the fundamental law. 

Whatever be the just view of this constitutional question, it is evi- 
dent, from the nature of the subject matter, that all the States have a 

• Letter of Gen. Harper to the Sec. of Col. Soc. 1817, 



A. 



( 



comnion, though unequal, concern in its decision : the right of ono 
portion depending upon it, to rid tlicni^elvcs ot' an existing evil ; and that 
of the other to anticipate the same evil l)y preventive legislation. The 
sutTering States, by expelling the obnoxious caste tVom tlieir b<Kinds, 
are, virtually, introducing them into the territories of other States, to 
renew, there, at pleasure, the evils tor wliich thej- were expelled ; and 
if the former can take relucc Itchind the law of self detence to justify 
their measures, the latter, it would seem, might avail themselves of 
the same expedient in justiliration ot theirs, 'i'ho right of emancipat- 
ing a slave upon condition of his leaving the State, is undisputed. — The 
question arises, altogether, out of the other branch of the remedv, the 
rj-pulsion of a coloured freeman. As fur as deliberate and eircctivc 
le/^isla'.ion goes, the constitutional right of residence in the fVee black, 
has, as already mentioned, born negatived in mnnv of the slave-holding 
States; and the question has beon presented in the Legislature of Penn- 
sylvania on a recent resolution for excluding him from the State.* 

The Federal Constitution is of uniform obligation upon all the States 
of the I'nion ; and should its provisions be clearly violated hv the laws 
or practice of any one or more States, the example can have no force 
in sustaining a similar violation of its provisions by any other State. — 
If, therefore, tlie free coloured class are entitled to constitutional pri- 
vileges in Virginia, or South Carolina, a .d without being chargeable 
with any oflence inducing a toi feiture of those privileges, are banished 
iVom their territory, Pennsylvania or New York cannot refuse to re- 
reive them, if they demantl admittance, merely on the authority of the 
Virginian or C.irolinian laws. The constitution, in all such cases, is 
alone the governing rule. But if the example cited l)c one merely of a 
dmihtful infraction of that instrument, and at the same time material to 
the |)rotection of high public interests, the dictates of sound policy ought 
to tumish the rule of action. In the constitutions of North Carolina and 
Tennessee there is no clause prohibiting the free black the exercise of 
the elective franchise,! the noblest badge of citizenship; but it is by 
no means clear that he is recognized as a citizen by the Constitution of 
the United States. Now suppose that these States, in the exercise of 
sovereignty, and under the dread of future calamity from their remain- 
ing, should banish that class of their inhabitants from their soil, and tl»«t 
the outcasts should ask an asvium in Pennsylvania ; how would that 
State feel bound to meet the case ? — Would siie yield to their demand — 
would she suffer the unity of her population to be broken by the inter- 
unixtnre of a black and servile caste — their lofty and enterprising spirit 
to be lost in an union with sloth and effeminacy, and her wide spread 
peace to be often jeoparded by the secret machinations of an internal 
and irreclaimable enemy ? We will venture to answer for her, no : — She 
would adiiere to the policy of her early days ; and, without remitting 
her efibrts in favor of a peeled and dishonoured people, she would be 
vigilant to preserve the body of her citizens from the pollution of so 
f )reign and threatening an element. 

There is no State in the cor.tedera'jy more exposed to the incursions 
of the refuse black inhabitants of others than Pennsylvania ; she has 

• Session of jI-52, Mr. N'smsanrj rcsoliidoii. • Tlic constitutions of IT'C h 1796. 



" cnanv of the coloured class already in her bosom, and a large part ot' 
•- her domain bordering upon the soil of slavery. Her laws too are mild 
"and generous towards these people ; and not a tew of her worthiest citi- 
zens friendly to their reception. — Accordingly, they are daily flowing in 
upon her — occupying the time of her criminal courts, filling her jails 
"•/and poor-houses, and saunteiing through her towns and villages in mis- 
ery and want : nor are the eyes of the Commonwealth ever awakened 
to their numbers until they have completed, as far as they are capable, 
a probationary title to citizenship under the Constitution of the State. 
That this state of things is a great public grievance is admitted by all 
who are friendly to the dignity and prosperity of the Commonwealth ; 
but strange as it may seem, there arc many of her citizens, eminent 
both for their discernment and legal information, who insist that it is 
beyond the Constitutional Power of the Legislature ; and as it is a cres- 
cent evil, so is it destined to be a permanent one ! Can it be that the 
/ Constitution binds so loathsome an excresence to the vitals of any State ? 
If so, that charter has certainly failed to secure some of the chief ben- 
efits for which it was formed. 

That the sovereign States composing this Union should, voluntarily, 
become parties to a frame of government, that would deprive them of 
the power to guard their own citizens from the dangers incident to a 
large influx of black aliens, with whom they never could become incor- 
porated, is exceedingly unlikely; and, in the absence of an express pro- 
vision in the instrument of government on the subject, the improbabili- 
ty of the fact should make us distrust any construction leadmg to such 
a conclusion. 

Those who advocate the political equality of the white and black 
freeman in the United States, rest the doctrine upon the 1st clause of the 
2nd section of the 4th art. of the Federal Constitution, which runs thus : 
'" The citizens of each State shall be entitled to all privileges and im- 
munities of citizens in the several States." The term citizen is no \ 
where defined in the Constitution : it was employed by the convention 
as a word of known and establised meaning — descriptive of all who are 
capable of citize/iship in all of the i^tates, with a due regard to the lo- 
cal qualifications required by each stale. That such is the true import 
of the term, may be gathered as well from the habits and views of the 
American community both before and since the adoption of the Constir 
lution, as from the authority ot learned jurists in the country who are 
conversant both with the language and spirit of that instrument. 

An intermediate order, between the free citizen and the slave, has 
existed in most countries where involuntary servitude has prevailed.— 
We have striking examples of it in the free States of antiquity, as well 
under their republican as monarchical forms of government. In Greece 
they were comprehended under the general name of metic, and were 
subject to sundry disabilities unknown to the citizen.* In Rome they 
were known by the term liberlini, and until the introduction of the lenient 
policy of Justinian were but seldom advanced to the freedom of the 
city, f This debased order was in these countries generally of the same 
race, language and complexion, of the superior classes — in the latter, 
especially, enjoying the privilege of intermarriage with them — but on 

• MitforJ 3SS. t Gibb. 163. Inst. Just. tit. 5. 



nccount of their servile birth, alone, ware retained in a modified servi- 
tude. Accordin:^ to the acute M )ntcsquicu the safrty ot the Roman Re- 
public doponJcd in a great doijree upon the iTstrninfs imposed upon this 
middle class ; and he commends the political system by which their alle- 
giance to the state was secured in connection with their crippled free- 
dom. + In rcirard to England, history sheds but a faint light upon her 
chapter of villeinage; but if we are permitted to judge by the rigid 
bondage of the villein, there cannot br; much doubt, that, in his eman- 
cipated state, he was but little elevated in the body politic above tho 
condition ol tho bondsman. By thi) Ju>tinian code a child whose pa- 
rents wore of different rank was enrolled among those of ingenuous 
birth; but hv the law of villeinage the issue succeeded to the grade of 
itsenslaved parent. Besides, it is wholly improbable that a government 
so intriri-iically based upon di>ti ict orders of society asthat of England, 
would, at a p-riod of its hist »ry much less favourable to the liberty of 
the lower classes than tha present, permit an enslaved portion of its 
subjects to emerge at once from their low estate to a station of entire 
freeilom. "* ' 

Were we to compare the present condition of thel'tiitcd States with 
that f>f either of those countries, at the periods mentioned, we could 
not fiil to discern in the relative color of their rcs])ective inhabitants, fi 
much stronger reason for assi^jning a state of limited freedom, only, to 
the emancipated negro here, than the mere circumstance of birth could 
furuish for imposing a similar restraint upon the freed man there. We 
are, however, not the apulogists of slavery in any form : — we would re- 
.' joice to sec both " its name and nature withered from the world." But, it 
1 iCannot Ix! disguised, there is a law of expediency, upon this subject, 
\ applicable to the present posture of things in the United States. To 
state what that law is, belongs not to the immediate object of this in- 
quiry, although its features may be collected from the facts and views 
here disclosed. 

The first adventurers to this country were of the white race — chief- 
ly subjects of the British crown — related by the same blood — speaking 
the same language — and ardently united in quest of free and just prin- 
ciples of government. The introduction ofthe African raceamong them is 
well known to have had an extrinsic origin — to have been the result of for- 
eign cupidity, and entirely irrespective of the social principle that im- 
pelled and associated the colonists. The original draught of the De- 
claration of Independence shews this tratTic to have been one of the e- 
numerated acts cf tyranny that led to the revolution; and various en- 
actments of the colonics — rendered fruitless by the dissent of the 
crown-^fullv attest their uneasiness on account of the growing num- 
bers of this class of their inhabitants. Being admitted unwillingly, 
thev were also classified without favour : instead of being treated as 
members ofthe free community, or even clothed with the right ofattaining 
to that rank, they were purchased as slai'c.s and made subject to the 
absolute disposal of their owners. In a word, they were viewed as an 

I Ksprit ftes Lnix. 2i3. * Seo llallam's View. 
Ill Russia tlie ma:iuiniue(! serf is l.kewiso suhject to some <li<a«bilities. — See Elli- 
ott's 'I'rivcls, ctia|). 14 — and the amemlt-d coiistilution of New York, in Hllottiiig the 
circtive fnmchise to the free people of color iindpi' ouerons conditions, places that ct«M 
other inbabitatits in this very state of quasi froeJoni. — Sec '2 Kcnt'i Com. ^205. 



addition to the property of the State, but never as an effective acces- 
sion to its mimhers. Their manumission afterwards was wholly an act 
of favour resting in the bosom of their masters; and, when thus favour- 
ed, their advancement to civil or political privileges was as wholly de- 
pendent upon the option of the white community. Indeed the annals 
of that earlv day do not shew that those privileges were in any of the 
colonies specifically conferred upon them. The antipathy that nature 
has established between the white and black races, and which, at the pre- 
sent day, allots them such different stations in society, was, perhaps, 
strontTcr then than now. The prosperous height of the slave trade had 
created, in the African race, a domestic foe to the liberty of the colo- 
nists, not less to be dreaded than the tyranny of the mother country, 
and, accordingly, served to cherish a distinction favourable to the as- 
cendency of the white race. 

Dangers connected with the increase of the coloured population were 
early discerned in many of the American colonies; and on that account, 
as well as from iuimane feeling, numerous laws were passed against the 
traffic in Slaves.* A law was passed in Pennsylvania, in 1712, ex- 
pressly based upon the " dangers of insurrection and mvrder from a ne- 
gro population,'" and the Petition to the throne presented by the house 
of Burgesses of Virginia in 1772, respecting the traffic, is replete with 
this sense of danger ; we present the f)IIovving extract from it : " The 
" importation of slaves into the colonies from the coast of Africa hath 
" long been considered a trade of great inhumanity, and, under its pre- 
"sent encourao-ement, we have too vndi reason to fear tv ill endanger 
" the very existence of your Majesty's American dominions. * * * 
* * * u --f [^Q traffic greatly retards the settlement of the colo- 
" nies with more useful inhabitants, and may, in time, have the most de- 
" structive influence. We presume to hope that the interest of a few 
"will be disregarded when placed in competition with the security and 
" happiness of such numbers of your Majesty's dutiful and loyal sub- 
"jects-'''X ^^^ are told also by Mr. JefTerson, that at an early period 
of the commonwealth, a bill was reported by the revisers of the Virgi- 
nia code, fixing an era for the emancipation of the slaves, accompained 
by a plan for colonizing them as a separate and independent people.f 
And it is known to have been the uniform policy of the colonies to 
invite the European to their shores, and advance him to the highest 
privileges of the State ; while the swarthy African was repelled by a 
penal law, or, when unwillingly admitted at a price, consigned to bond- 
age. 

That it was not a sentiment of humanity, merely, that prompted the 
colonial regulations against the slave trade, is evident from other con- 
siderations. It is a well attested fact, that some of the most enlight- 
ened men, in those sections of the country where the evils of that traf- 
fic were most prevalent, espoused and avowed the opinion that the white 
and black races are physically and morally distinct — the inferiority of 
the latter being supposed to unfit him alike for self-government and the 
refined enjoyments of an advanced state of society. To what extent 
this philost)phical distinction may have obtained, we pretend not to say; 

" See Wahli's Appenl for a reference to these laws, page 312— also 9tli Wheat. Rep. 
109 (note. ) t Tucki.'i's Blackstoue, Appendix to I vol. + Notes on Va. 



6 

, but when we consider the influence of high authority in moulding 
pubhc opinion in general, and the weight of peculiar interests that, in this 
instance, came to its aid, it would not seem unreasonable to infer thai 
the doctrine won many advocates. 

The conclusion to which the foregoing reflexions conduct us is not 
weakened by any thing in the frames of government adopted by the 
States after the Declaration of Indt'ix'ndencc. These instruments of 
government beinij formcil upon the known sentiments of the conimunity 
and the pre-existing relations of its members, cannot be construed 
80 as to violate those sentiments, or eflcct a change in those relations, 
without a specific reference to tlicm: and it is a well established rule, 
that a general term may have a restricted meaning when the nature 
of the case reijuires it, and such meaning best harmonizes with the 
antecedent views and present practice of the party concerned. In 
some of the States, the view we have taken is fully carried out 
bv the express language of their Constitutions. In Delaware, Vir- 
ginia, Kentucky, Missouri, South Carolina, and Georgia, the dis- 
tinguishing |)rivilege of the citizen — the right of voting — is confined 
to the white freeman exclusively — in the last mentioned State bv a frac- 
tion only of the coloured population being included in the constituent 
masd. In the constitutions of the other Southern States the term free- 
man, OT free inhabitant, is used to designate the electoral body. This 
term is of broad signification in itself, but when interpreted by the com- 
mon understanding and jyracticc of the people in those States, has the 
same limited application (o the white population alone. The propriety 
of this construction is strongly supported by the legal disabilities of the 
coloured ranks in all of the States south of Pennsylvania. " In the 
" slave holding States," says a sensible writer, " the free blacks do in- 
" deed labour under civil incapacities ; and the policy of denying thcra 
"the higher privileges of citizenship is imperative.''* In addition to 
other deprivations, they are dis(|ualified to holdofliccs of trust or profit, 
to sit as jurors, or to bear testimony in courts of law or equity affecting 
the interest of a white suitor. To apply the term citizen to one labor- 
ing under such material disabilities, would, certainly, be a perverson 
of its just im|)ort. In the majority of the free States, the numbers of 
the coloured class were too inconsiilerable to merit special notice in their 
constitutions : their political rank was therefore left to be fixed by 
popular sentiment; and, we need hardly add, that in all of them they 
are deprived of some of the main privileges of the white citizen. We 
close this part of the argument, threefore, with the conclusion, that, at no 
period prior to the adoption of the Federal Constitution, was the free 
coloured population of this country admitted to an equal share of politi- 
cal power and privileges with the white race. 

• Mr. Walsh — see fiis "Appeal," 39j. 



PART II. 

Political condition of the Free Blacks under the Federal Constitution. 

" In democracies," says a historian already cited, speaking of the 
Grecian governments, " the supreme power was nominally vested in all 
" the people, yet those called the people who exclusively shared that 
*' power, were scarcely a tenth part of the men of the State." The 
same remark is applicable in a degree to the government of the Unit- 
ed States : it was nominally framed by all the people, yet, it is believed, 
a large class, residents of the soil, had no agency either direct or indi- 
rect in its formation ; consequently the privileges which the constitu- 
tion imparts, in the absence of any specific provision m behalf of a dis- 
franchised class, can only be considered applicable to those who com- 
posed the sovereignty from which it emanated. This is equally true of 
the constitutions of the several States ; and it will hardly be affirmed, 
that the will of the coloured class was in any manner consulted in the 
formation or adoption of these frames ot government. We have en- 
deavoured to shew that such an opinion is irreconcilable with the views 
and practice of the whole American community. The coloured class 
then having no political rights on the score of constituting a portion of 
the sovereign power at the formation of the general government, we 
come now to enquire, whether, m the charter of government then form- 
ed, there is any specif c ijrovision bestowing upon them the rights or 
privileges of the State? 

By the clause of the constitution quoted in the first part of this es- 
say, federal privileges and immunities are guarantied to the citizens of 
of the States respectively; but, as already said, we are not furnished 
with any description of the persons bearing that character. The rea- 
son of this omission is found in the right of each State to prescribe its 
own conditions of citizenship; and as the States differ in their regula- 
tions upon this subject, an exact definition, excluding their differences, 
and adopting only their points of agreement, was, perhaps, deemed by 
the convention both hazardous and unnecessary. That this is an ex- 
clusive right of the States, is not only attested by their uniform prac- 
tice, but admitted by the language of the Federal Constitution. It is 
provided in the 1st art. of the Constitution that " the electors in each 
state shall have the qualifications requisite for electors of the most nu- 
merous branch of the State legislature ;'''' and in the 2d art. "each State 
shall appoint, in such manner as the legislature thereof may direct^'' the 
electors of president and vice president. These passages plainly shew, 
tliat the electoral right, which is a [)rimary qualification of the citizen, 
is excepted from the meaning of the phrase privileges and immunities 
in the clause under consideration, which can only be viewed as descrip- 
tive of certain local advantages incident to citizenship already acquiv' 
ed under the State laws: otherwise, the laws of one State might 
dictate the terms of citizenship in every other. In this sense those 
prioilcges and immunities are conferred upon all who are citizens 
of any of the States, having no inherent incapacity to become citizens in 
them all. The character thus created, by the joint operation of the 



8 

State and Federal laws, is, properly, a federal citizen — a name ap- 
plicable to all who are cilizats of either of the States by birth or natu- 
ralization, and cxcludini; all uhain cither of the Slates may have placed 
under disabilities, ichntecer political facors the same class may enjoy 
un 'er the laws of other Slates. By tliis cnnstruction, no violence is 
done to the language of the Constitution, while its spirit is harmonized 
with the uiiitbrtn polity of the country, the present state of public sen- 
timent, and the discrepant legislation ot the several States, — by some 
of which — Delaware and .Missouri, for instance — the free blacks of oth- 
ers are prohibited entering within their bounds. 

Nor is this view of the Constitution objectionable on the score of 
novelty: it has the sanction of the most onlightened authority in the 
country. " The article in tho Crtistitiition of the United States," snys 
the late Chancellor Kent, "declaring that citizens of each State ore en- 
" titled to all the privileges and immunities of citizens in the su'veral 
" States, applies only to natural birn, or didy naturalized citizens ; and 
"if they remove from one Stale to an >thcr, they are entitled to the 
'• privileges that pcrs>ns of the s<wne description are entitled to in the 
" State to which the removal is made, and to none other. It", therefore, 
" f)r instance, free persons of colour are not entitled to vote in Carolina, 
" free persons of colour emigrating there from a northern State, would 
" not bo entitled to vote."* Th? construction here adopted by tho learn- 
ed commentator is equally explicit and just ; but the illustration wc 
cannot help thinkinii ijiacuratc, and opposed in p^rt to an opinion else- 
where expressed by him in the same treatise. Tho word privilege in 
the Constitution was certainly not intended to embrace the elect ire fran- 
chise, but only certain accidents of that ri^ht growing out of local u- 
saTcs. The clause in which it is fjund is subordinate to the laws of 
the States on the subject of citizenship ; but the things which it imports 
are unconditionally bestowed by the Constitution upon persons already 
supposed fo be in the enjoyment of the electoral right. The Constitu- 
tion imparts to no description of j)fople in any one State, whether black or 
white,the r/;'-A/o/'co/t/J5^ in any other State; but it does secure //le/wirj/e- 
gcs and immunities of each State to the citizens of all. VVc agree more- 
over that these privileges and immunities are confined to "natural born 
or duly naturalized citizens," but. for reasons in part already stated, we 
must dissent from the opinion in the extract, ihai^' free persons of colour" 
fall under that description. — Indcod, when the general sense of the quo- 
tation is moulded into a syllogism, it sustains our view, thus: The 
privileges and immunities of the I'edcral Constitution apply only to nat- 
ural born or dulv naturalized citizens — but fiee persons of colour are 
denied them in several of the Slates — iheiclore free persons of colour 
are not such citizens. It is with pleasure we ackiowledge the high 
authority and gcr.t^ral correctness of llie works of this distinguished ju- 
rist ; nor can we with any but a iVail confidence venture to question the 
soundness of any of his constitutional views. Our dependence is on the 
common lot of the most enlightened and acute minds — a failure to pre- 
serve, in a general treatise, technical accuracy upon topics incidentally 
discussed. 

This interpretation of the clause is farther strengthened by theau- 

• 2 Kent'B Com. p. Ci. 



thority of Justice Story in his valuable " commentaries on the Consti- 
tution of the United States." " The intention of this clause," says that 
writer, " was to confer on the citizens of each State, if one may so say, 
" a general citizenship ; and to communicate all the privileges and im- 
" munities which the citizens of the same State would be entitled to un- 
" der the like circumstances."f According to this view of a very able 
expositor, the claimants of the privileges in question are invested with 
a. federal citizenship, and classed with the citizens of the State to which 
they have removed — advantages that cannot be said to pertain to the 
free coloured class, who are ranked below the citizens in some of the 
States, and are denied even the right of ingress by others. — The quali- 
fyino- circumstances, mentioned, do not change' this meaning; they re- 
fer to local regulations that prevail in most of the States, and are ap- 
plicable to the 7iiost favoured class of emigrants from others ; but they 
are evidently not such as are incompatible with the attainment of citi- 
zenship by the emigrant in the State to which the removal is made, 
and, consequently, are not descriptive of the condition of the free black. 
In collecting the various authorities upon the construction of this 
clause of the Constitution, we cannot omit that of the learned Mr. 
Rawle in his "View of the Constitution," a work of very superior mer- 
it. " The citizens of each State," he informs us, " constituted the citi- 
" zens of the United States when the Constitution was adopted. The 
" rio-hts which appertained to them as citizens of those respective com- 
" momwealths accompained them in the formation of the great com- 
" pound Commonwealth which ensued ;" he adds, " evei'y person born 
" within the United States, its territories or districts, whether the pa- 
" rents are citizens or aliens, is a natural born citizen in the sense of 
*' the Constitution and entitled to all the rights and privileges appertain- 
" ino- to that capacity."* Such is unquestionably the true doctrine, 
limited, however, to the white population ; and that the passage is sub- 
ject to this limitation is obvious from the general remark by which it is 
introduced, viz: "Those only who compose the people and partake of 
" the sovereignty are citizens ; they alone can elect and are capable of 
" being elected to public offices, and of course they alone can exercise 
" authority within the community." That the coloured freeman has 
ever been formally elevated to citizenship in any State of the Union, we 
are not prepared to admit ; but we doubt whether any one will main- 
tain that he has, in the sense of this writer, so shared in the sovereign- 
ity, either of the General or State governments, as to entitle him to thac 
rank. To establish the negative, on this point, we do not deem it ne- 
cessary to add any further evidence to the facts and reflections already 
presented. 

It has been urged by some that the term citizen, in the Constitution, 
is applicable to all the inhabitants of the States, whatever may be their 
relation to the government ; and that the pritileges secured to them 
are such only as the State bestows upon the class to which they belong. 
If this be the true construction, it is equally op|)osed to the doctrine 
combatted : for it recognizes the inferior grade of the free blacks, and 
the authority of the States to place them under civil and political disa- 
bilities. But we cannot adopt this construction, for two reasons of 

•f 3 Story's Corn. p. 675. * Rawle's View of Const, p. 86. 



10 

great weight, — First, the clause was maiiifeslly intended to confer a 
benefit upon all witliin its range; but siicli cannot be its ctTecl towards 
Hie coloured race, wlio, instead of beariui,' with them a a title to prici- 
IcfTts in their niiijration fn^m tlie Northern to tlie Southern States, car- 
ry a liability to the most oncruti.sand dcpressiiiif (H!^'jiiatificalioii3. Se- 
condly, the o[»eration of the clause is cu-ext(Misivc with the Republic — 
obligatory U|)on all the States ; but in some of the States the free blacks 
of othcrs'are prohibited the right of iiif^ress, both by their Constitution 
and laws.* This definition of the word citizen, moreover, is not in ac- 
cordance with that of standard writers on government. — According 
to Sidney, ''freeholders who hare their rotes arc properly citeSy inetnb- 
'' ers of the Commomrealih, in distinction from those who arc only in- 
" fo/<r or ni/ia/W/a;j/.f, slaves, and such as, being under their parents, are 
" not yet free."t Entire freedom and the right of voting arc, therefore, 
indis|»cnsible properties of the ritizin ; and the epithet is abused when 
it is Ix'stowed uixin any disfiiuichiscd class — who are, technically s|>eak- 
ing, inhabitants only. Vattel i>* to the same puriK)se. " The citizens,'^ 
says lie, " arc the mnnbers of tlf ciril socittij : buund to this society by 
••certain duties, and subject to its authority, lUcy eqiiath/ participate in 
*' it.tadrantagcs. Tha perpitual inhabitants uti: those who have receiv- 
*'ed the risht of a perpetual residence. These arc a kind of citizens of 
''an inferior order, and are united and subject to the society i/-i^//y«^ 
'• jHirliciiHiting in all its adrantagcs."^ 

The great fallacy consists in supposing that the IVideral Cjii^litution 
lia.s uf itself crcdlpd a new citizen, distinct tVom the citizen of the States ; 
w hereas it only imparts to the State citizen new privileges ; in return for 
which, it, very properly, exacts his allegiance. j| 

The corresponding section in the Articles of Confederation, it is ad- 
mitted, betrays singular inattention to verbal accuracy, — a confusion 
of language that might at some future day have led to a serious dis- 
turlKince of the government. The clause anala£[0us to the one cited 
fmiu the Constitution, runs thus: "the free inhabitants of each of these 
" States, paupers, vagabonds, and fugitives from justice excepted, shall 
•* l)C entitled to all tha privileges and iuiniuiiities of free citizens in the 
" several States." Now, unless the phrasc,//ef' iuhnhilanl, here, be ta- 
ken as svnonimous with citizen, the passage would have invested the 
Federal Power with a cuntrolling authority over the laws of the States 
regulating the political grade of their several classes of inhabitants, — an 
authority which the States never could have surrendered consistently 
with the duty of self-guardian- hip. Taken subject to this construc- 
tion, the clause is substantially the same with that of the Constitution, 
and consequently, can shed no light upon its meaning in regard to the 
description of persons under view. 

It has been objected to this view of the subject, that the Constitution, 
in apportioning the representation among the States according to tlie 
^' ivhole number of free persons,'' virtually bestowed a general citizen- 
ship to the extent of the enumeration. § Now, althougli an omission of 
any class of the people, by the law fixing the constituent body, may be 

• Dulawarc and Missouri. iSiiliicv on fJoit. vol. 2. ]>. .11-2. 

J \aw of NhI. H. 1. cli. 19.— See also. Dr. WVIistci's definition. J 2Ki«nt com. 37. 

\ .V «rili.T o\ci- llic siijii.ilun; of •• I-jviii," in N.fv fi^ii. foi- 'ijj Nuv. 1333. 



II 

fairly regarded as a political disfranchisement of that class — as in the 
Constitution of Georgia — yet, it docs not follow, that all who are 
included in that body, whether by a general or specific descrip- 
tion, belong to the rank of ci/izens; and to this extent the argu- 
ment must go. It is founded upon the notion that all who constitute 
the basis of the representation, are ipso facto entitled to choose repre- 
sentatives ! The position is undeniable, that the wise men who formed 
the Constitution, did not mean to interfere with the electoral body of 
the States, nor to create a privileged class different from the aggregate 
class of citizens. But, independent of this fact, the spirit of the objec- 
tion here, would obviously ascribe the highest privilege of the citizen 
not only to indented servnnts and resi lent aliens, but to three fifths of 
the slaves also, who are equally included in the iederal numbers — a 
conclusion at which no rational view of the government can ever arrive. 
It v,-as wholly f)reign to the object of this constitutioal provision to de- 
sijrnate those who were to have an active participation in the govern- 
ment; it is, allowedly, not confined to either the citizens, or free innoh' 
Hants., but, with one exception, embraces persons o^ ever if rank and de- 
scription. The mere residents of a country, bound only by a tempora- 
ry fealty, have personal rights and may have riglits of property requiring 
and receiving the protection of the laws, and should, thereibre,not be over- 
looked in adjusting the rule of representation. Such is the principle 
upon which the liberal rule of the Federal Constitution is based : itf? 
purpose was, to secure to the States an influence in tlie po[)ular branch 
of the government, according to the numher of ttieirjnhabitants, re- 
speclivehf, without any reference to the political rights or privileges of 
any class of their population.! 

Equally fallacious is the pretence, thrU the liability of coloured free- 
men to taxation, coupled with their right of acquiring and holding prop- 
erty, constitutes them citizens. The unqualified alien is, to a certain 
extent, subject to the same burden, with the additional one of bearing 
arms, and enjoys the same privileges; but he is not thereby elevated to 
citizenship. These duties and benefits are incident to residence merely. 
Every just government extends the arm of protection over all its inhab- 
itants, and they, in turn, owe it, according to their character, natural 
or local allegiance, the violation of either ot which is punishable as 
treason:* but still this relationship of the parties is considered in eve- 
ry sound treatise upon national law, as distinct from that between the 
State and citizen.:]: ^ 

The view here contended for derives support also from the tenor of 
the federal legislation. The naturalization law of 1802, that was pas- 
sed by Congress in execution of tlie power confided to them by the 
Constitution, is expressly limited to aliens of the white race. The lan- 
guage of the first section is, "Atsy alien being a free white person may 
be admitted to become a citizen of the ITnited States or any of them on 
the following conditions," <kc. Thus, the complexion o( the alien is 
made an essential prerequisite to his admission to the rights of a citi- 
zen in a mode that bestows the character as perfectly as birth ; and as 
it has always been the policy of the United States to encourage 

tFcfleralist, Xo. 54. 

* 1 East. Fie. Cr. ch. 2. :f Madison's Roporf on V.i. Rcsol. of 179S. 



12 

immigrotion, if the native coloured freeman here is advanced to tlioso 
rights by birth, it would sceni notliing short of a violation of the spirit 
of the Constitution to make the coKiur of tlie foreigner a condition of /*/.'? 
receiving them. Tlie law certainly all^jrds presumptive evidence that, 
in the judgment of Conijress, the colour of the African race is a con- 
stitutional barrier to their admission to the rank of citizens in the Uni- 
ted States. 

Concurrent testimony upon this head is furnished by the act of Con- 
gress of ISlH, providing a temporary government for the Louisiana 
Territory. Hy this law the snme distinction of the races is noticed, 
and the civil privilejxcs of the territory are confined to the " free male 
vhilc"' residents. Now there is nothing in the language of the Con- 
stitution, respecting the public domain, that authorizes this discrimina- 
tion in favour of the white racr ; but, it was doubtless the belief of the 
legislature that passecl the law. that the plain spirit of the instrument 
approved the discrimination ; and it is with a view to this fact only 
that the case is cited. Regardini; this high legislative authority 
as unfolding the true spirit of the Constitution, how docs the genius of 
this statute comport with the political equalitv of the two races under 
the immediate government of the Constitution ! It is cntirrlv incredi- 
ble that a charter of gorvernment would, without words to that etlcct, 
sanction a pnrtinl distribution of the privileges of the State in one 
of its territfjrial districts the iniiabitants ot which were soon to be incor- 
porated indiscriminately with the bcnlv of its own ciiizcns, il others, 
"partoinin^ to the disfranchised claM under the immediate government 
of the charier itself, were entitled to a full and equal share of those 
privileges. * 

A looser phraseology has crept into other enactment*? of Congress, 
but, as will appear on examination, without anv material bearing on the 
point at issue. The act of 18U3 against the slave trade, provides for 
the punishment of any person who " shall import or bring any negro, 
mulatto, or other person of colour, not being a native, a citizen or re- 
gistered seaman, into any port or place of the I'nited States, which, by 
law has prohibited or shall proliibit the admission or importation of 
such negro," tV:c. i The inference drawn, on the first blush, from this 
language, is, that the subjects of importation descril>ed, although per- 
sons of colour, may also l>c citizens of the Vnitcd States. It is mani- 
festly, however, not so. The act was passed under the power confered 
upon Congress by the 1st clause of the 'Jiid. section of the Constitution, 
and is pointedly directed against the slare traffic. It is farther observi- 
ble, that its penalties arc inflicted upon the inan-stealer,iin(\ not upon the 
voliinJanj emigrant ; and the crime which it denounces is not migration, 
h\it forcible importation for ohjccfs of slarenj. The pers-ns introduced, 
morcover, must be such as the states concerned have declared by law 
their vnu'iUingness to admit : of courae they cannot Ix; citizens of any 
of the states, as no one state in the union has the power to refuse ad- 
mission to the citizens of the others — the right oringress being, unques- 
tionably, among the privileges of the citizen secured by the federal Con- 
stitution f The whole object and tenor of the act, therefore, shews the 
phrase " citizen of the Vnited States^' to be redundant and expletive ; 

• Sec Kawlc'» View as before cited. } 3 U. S. Ij»ws 529. + 9 John R. p. 507. 



13 

and makes it unnecessary to add any thing upon the grammatical unfair- 
ness of ascribing citizenship to a class by language of distinct negation. 
The joint resolution of Congress admitting Missouri into the Union, is 
perhaps deserving of more attention. When that exciting subject was 
under debate in the public councils, the question now under diuscussion 
formed part of it, and elicited much z°al and ingenuity on both sides. — 
On the application of the people of Missouri, a law was passed by Con- 
gress for their incorporation into the Union on the usual repvUican 
principles. When the Constitution of the inchoate state was presented 
for acceptance, it became a question whether those repvblican princi- 
ples were complied with? It was suggested that the 4th clause of the 
26th sect, which directed the legislature of the state to pass laws "to 
Tprevent free negroes &, rnulattoes f7-om coming to and settling in the state, 
was repugnant to the clause of the Constitution of the United States 
which we are now considering, and in violation of the rights of the citizens 
of the several states. After being the subject of much harsh and criti- 
cal comment, the objectionable clause was referred to a committee of 
three, of which the benevolent and acute Mr. Lowndes was chairman. * 
The report of this committee was in favor of the republican spirit of 
the clause, but it avoids a decision of this question, — deeming it "one of 
nice and difficult inquiry, that, when a case occurs, should be re- 
mitted to judicial cognizance." This report being a production of very 
respectable authority, we take the liberty of extracting that part of it 
which relates to the subject of the present argunient : "Of all the arti- 
*' cles in our Constitution," says the committee "there is probably not onel 
" more difficult to construe well, than that which gives to the citizens 
" of each state the privileges and immunities of the several states ; there 
" is not one, an attention to whose spirit is more necessary to the conven- 
" lent and beneficial connexion of the states; nor one of which too large 
" a construction would more completely break down their defensive pow- 
" er, and lead more directly to their consolidation. This much in- 
*' deed seems to be settled by the established Consiilutions of Stales in 
" every section of our Union : that a slate has a right to discriminate 
•' between the while and the black man, both in respect lopolilical and 
" civil privileges, though both be citizens of another state: to give to 
" the one for instance the right of voting and of serving on juries ivhich 
" it refuses to the other. How far this discrimination may be carried, 
" is obviously a matter of nice and difficult enquiry ."f According to 
this testimony the grade of the free coloured man in the United States 
is greatly inferior to that of the citizen : He may be subjected both to 
civil and political disabilities in all the states ; while the citizen is not 
liable to either in any of them. It is true, the resolution accompany- 
ing the report was not adopted, but made to yield to the joint resolu- 
tion of the two houses alluded to, which provided that the clause 
should be retained in the State Constitution, subject to the con- 
dition " that it should never be construed so as to deprive any citizen 
of any state of the privileges or immunities to which he is entitled as 
a citizen of the United States." But in this result, happy as it proved, 

* The committee consisted of Mr. Lnwndes, Mr. Sergeant and Mr. Smith. The 
report had tlie assent of the majority only. 
tNilesUeg. vol. 19, p. 207. 



14 

there was pro/esieMy no legislative adjudicalion on (lie chnrncler of the 
clause. That question was sulliTcd to remain as it was found. If the 
rciioliition adopted asserts the (xjlitical claims of the coloured race, the 
Constitution of Missouri asserts the contrar)'. The restriction imposed 
upon the construction of tlio clause, merely reserves the rights of citi- 
zens; and whoever douhted that a new State, by the very act of ac- 
ceding to the federal leairue, voluntarily submits to that limitation of 
its authority ? The acituied subject was dismissed by a fraternal com- 
promise of diHcrini; opinions, that restored the harmony of the country 
and referred the al)stract question to the courts for settlement. 

The^e are, th':'ref )re, not the acts of Conjjress to consult, to ascertain the 
sense of that bo<ly u;M)n the subject of this eiiquirv. They hardlv touch 
the problem: but in the laws /;/ff/V)f/.s/// cileii, we have direct legisla- 
tive action on the subject matter — an er/ilici/ ilciiinl of jiohlicnl and ci- 
vil priviles^e^ \o persons of cnloir. Tii"-j; laws import not mcrelva 
decision upon an abstract principle, but tlie application of a Constitution- 
al rule to a real case, and may Ivj likened to the judgment of a court 
of law upon a case litigated, with, perhaps, equal claims to authority. 

N'liiiq-mni h-x aliilcl, juilex nliild Jixit. 

There is yet other authority directly to the point. " In most of tho 
United States," savsClianccllor Kent " there is a distinction in respect 
" to political privileges between free white |icrsons and free coloured per- 
" sons of African blood ; and in no part of the country do the latter, in 
" point of fact, participate equally with tho whites, in tlic exercise of 
'• civil and political rights. The African race arc essenlinlli^ adesraU- 
ed caste, oj inferior rank and cond tion in soci-ly" * This opinion, 
the reader will perceive, is not easily reconciled with the view of the 
Constitution taken by the same author in a firmer page. A caste " cs- 
lentinl/i/ de^rndcdy' cannot, at the same time, be citizens, nor, in any 
sense, entith'd to their privileges and inuiiuuities under the constitution. 
The same doctrine is maintained in the Americana Cyclopadia (title, 
FreedmnnJ a Iwok which if not of standard authority, is adorned witli 
the ablest p-^n', and has gained much encomium for the correctness 
and solidity of its contents. 

The question arose in a recent case in one of the inferior courts of 
Connecticut. It was an information filed by the Attorney CJeneral a- 
painst one Prudence Crandall, "for boarding and lodging free coloured 
persons, for the purpose of instruction, not being inhabitants of the 
State," in alleged violation of a State law. It was urged for the ac- 
cused that the law under which the prosecution was instituted, was re- 
pugnant to the constitution of the I'nited States — the fourth art. of 
which secured to the free coloured itdiabitant.-? of all the States the 
right of ingress and residence in any of them. I5ut Judge Dagget charg- 
ed the jury decidedly agninst this position, chiefly upon the autiiority of 
the learned commentator just cited. "To my mind," (we quote from 
the charge,) " it would be a perversion of terms, and the well known 
" rule of construction, to say that slaves, free blacks or Indians, were 
" citizens within the meaning of that term as used in the constitution." 
The charge is a plain statement — as every charge to a jury ought ta 

• 2 Ker.l's Com. p. 238. 



15 

be— with but little of that ill judged garnish of learning and authority 
which judges are too prone to parade for the display of themselves and 
the confusion of the jury. The point is directly met and unequivocally 
decided. It may be doubted, however, that the condition of the Indians 
furnishes an apt illustration of that of the African race in the United 
States. Their nomadic habits are such, to be sure, as unfit them for 
the local life of citizens ; but whether they do not both legally and 
physiologically belong to the white race, and whether their mode of 
life is any thing more than an adventitious obstacle, merely, to their 
acquiring the-rank of citizens, are questions certainly deserving of some 
enquiry. The finding ot the jury, in this case, was in accordance 
with the charge of the court, but the question may not yet be finally- 
determined: it involves a principle of deep importance, both to the co- 
loured population of the country, and the communities proper of the 
several states, and merits the decision of the highest judicial tribunal. 

The true condition of the coloured ranks may be farther gathered from 
the motive that chiefly governed the states in enacting laws against the 
slave traffic. That motive, it has been shewn, was a sense of national 
freedom and security,«T,nd had reference to the character of the evil 
alone, and not to its source, — to the dangers menacing the state in an 
overgrown coloured population, and not to the country or place whence 
that population might come. This conservative power of the states 
over the unity and repose of their own citizens, was frequently frus- 
trated, under the colonial government, by the sordid policy of the 
parent country, but, since the Declaration of Indepencence, it has, as we 
have seen, been effectively exercised by many of them, with the coun- 
tenance and aid of the general government. In the formation of the 
Constitution, this power was conferred, concurrently, upon the federal 
government by the 9th sect of the 1st art. To have parted with it entirely 
would have been an abdication of the right ol self pi'otection on the 
part of the states, and might have involved the general government in a 
course of invidious legislation for tlie interior welfare of some of the 
states, that would have been productive of jealousy and discord. The 
power, therefore, was retained, as well as transferred, and may, at any 
time, be called tbith to avert the evils over which it was originally ex- 
erted. The existence of this power in the states is recognized by the 
laws of the country, and the decisions of its courts : we believe its ex- 
istence has never been denied ; but, strange to tell, its exercise is 
supposed by some to be limited greatly within the bounds of the worst 
evil against which it can be directed ! 

The 1st clause ofthe Uth sec. of the 1st art. of the Constitution pro- 
vides that," the mi!:,ration or importation of such persons as amj of the 
" States noiu existing shall think proper to admit, shall not be prohibited 
" by Congress prior to the year 1808 ; but a tax may be imposed on such 
*' importation not exceeding ten dollars for each person." This clause, it 
is contended by the advocates of a restrictive construction, relates alto- 
gether to the foreingn slave trade; and the prohibitory power of the 
states, implied in it, is confined to the same source of danger. This 
opinion is proper to tiiose who assert the citizenship of the black free- 
man in the United States, and may be considered, indeed, a corollary 
from that doctruic — standinir or fallinir with it. If the conservative 



16 

po^^Tr of the states, in reference to the dangers of a dense coloured po- 
pulation, were /«//// adequate to their protection bctbrc the adoption of 
the Constitution, there is certiiinly nutliin^ in the forgoing clause to 
restrict it to the Alric-an trade : unless the admission of a jHJwer over 
a specified object, is, virtually, a denial of its applicability to other ob- 
jects not specified. The increase of the tropical race is the danger to 
be rej)clled ; and what matters it, whence the influx immedialciv pro- 
ceeds F It may be Irom another country, or only from another state ; 
it may be by Jorcible importation frotn abroad, or by volunlart/ migra- 
tion at home; still the mischief is the same, and the state may stand 
upon its reserved power against the invasion. Any other conclusion 
Would leave the welfare of the states in greater insecurity than it was 
before the formation of the Union. 

But there is considerable diversity of 'opinion among enliirlitened 
men as to the true scope and meaning of this clause of the Constitu- 
tion ; 

Non nostrum tantas coroponcre litea. 

Tl)e late judge Addison, in speaking of it, says, *' It is well known 
*' that the prohibition in view res[iected only strives. This was univer- 
*' sally understooti at the time ol the publication of the Constitution, du- 
" ring its discussion, and ever since.""* If this be the just meaning of 
the clause, it would seem to have l)rcn intnxluccd, mainly, for the de- 
fence of the natural rights of the African, with but a secondary refer- 
ence to the unity and |K^acc of the American people : — it would shew the 
power of Congress to be plenary for the former object, but quite inade- 
quate to the demands of the latter, lint, however the power confided by 
the clause to Congress, may be limited to the t"oreign traffic, it can nev- 
er be construed to abridge the pre-existing power of self protection in 
the States, which must, by necessity, be co-cxtensive with the sources of 
the evil. 

The same view of this constitutional provision was taken by the 
*' Federalist," with but few explanatory remarks upon its phraseolog\- ;f 
and the inquiring mind of Judge Story seems to have been also content- 
ed with this exposition, and the incoherent application of the word mi- 
gration, to " voluntary arrivals " of slaues : for if the sense of the 
clause be confined to the slave trade there is no other class of persons, 
to whom the term can be applic.ilde.t Such is, however, not the mean- 
ing ascril)ed to the passage by the court in the case of (Jibbons v. Og- 
den, Irom which this discerning writer seems to have extracted this por- 
tion of his commentary. 

It appears by the journal of tlie Federal Convention, that the word 
migration was retained in this clause of the Constitution in opposition 
to an amendment that was ofi"orcd omitting it : Some specific meaning 
was therefore attached to it. In the language of Mr. Ilawle, " the sec- 
" tion has a commercial, moral and political bearing," and should be con- 
strued accordingly. The word importation is well understood to refer 
solely to the slave trade; but migration cannot, philologically at least, 
have that application. In its loosest acceptation, it imports a volunta- 

• See his " Defence of the Allen :»ct." + " Federalist," No. 42. 
\3 Storj's Cora. -05-6. — llic langua^'C of the author may be considered somewhat 
equivocal. 



17 

ry change of place ; in its more exact sense, the change is confined to 
difftrent. purla of the same counlry. According to this latter sensey it 
can have n;') allusion \.o foreixntrs ; and according to either sense, it is 
wholly irrelevant to both the foreign and domestic traffic in sluvnii — 
inasmuch, as Ihe'ir change of residiince is always compulsory- The 
explanation of this woixl given by judge Addison, is the most plausible 
that we have seen in support of the narrow construction of the clause. 
He maintains that mii^rntion was used to correspond with the word 
persons, and is descriptive of the slave's passage over land after his im- 
portnlion or arrival.* However reasonable this exposition may appear, 
it is opposed by several names of equal ability and fame; to say nothing 
of the imperfect reference of the term, with ail its aid, to a system of for- 
cible abduction from abroad, and the ///ero/ diversion which it makes of 
the penalty of the law from the real culprit to the unoflending slave. 
Who then are the /7?/^;7/«/s contemplated by this clause? They are 
such " pers)nH as any of the States shall /hink prujier to admit.'''' — a 
class that might be deti imtntal to the public weal, and whose admis- 
sion, on account of their natural alienation from the white nice, many 
of the States //c/^/ already decided maiast. Such was evidently the 
spirit of the legislation both in Virginia and Pennsylvania, referred to 
in a former page ; and, as such, it was equally pertinent to the coloured 
slave and the coloured freeman. 

This theory unfolds, still further, the reason for confining the natu- 
ralization laws to roliite aliens alone. Had they been extended to 
the tropical race, they would have come into serious conflict with the 
settled policy and laws of several of the States, and created the singu. 
lar anomaly of two distuict classes of black freemen in the same State 
— the one occupying a degraded rank, and the other advanced to the 
dignity of citizenship. 

It may be added also, in confirmation of this view, that the tax 
which Congress was authorized to impose, for the limited period men- 
tioned in the clause, was restricted to the imported class alone; which 
argues that the migrants were not considered subjects of traffic, but, as 
persons in voluntary transit, liable, however, for some cause, to be ar- 
rested in their passage. 

The strict interpretation of this clause meets with no countenance in 
the expositions of it furnished us by Mr. Jefierson and Mr. Madison, in 
the celebrated Resolutions and Report of the Virginia Legislature, in 
1798. The judgment of two such statesmen on a constitutional ques- 
tion, — one of them having been a member of the Federal Convention 
— might be deemed oracular, were it not, that the greatest minds, in 
times of high political excitement, are liable to be swayed by partial 
motives. The word " ??u^'-ra/to« " is treated, in these solemn acts of 
Virginia loyalty, as extending to "w/tiie aZtc?«s;" and, such, possibly, 
may be one of its legitimate applications; but there are, certainly, rea- 
sons to doubt it, and especially when the term is viewed in connection 
with the argument of these documents. :]: 

In the first place; to refer the prohibitory power of the States ad- 
mitted in the clause, to while aliens, would be adverse to their known 

•Defence of Alien act. 4 See 5tli Kesol. and Report. 



1^ 

and cstabli^licJ policy, which son i^lit to j/jt'/fcaf, but never to rf(/t/rf 
the number of their white inh:ibilant.<. Indecil, so obvious was thi.s 
fac:, at the date of the report, that its author arirucH, that a power of 
prohibition over this class of persons rniglU be coiisidcrrd an not iHTtain- 
iii^ either to the general or xfatc gorerninent — a supposition that 
clashes with the sense of the resolution he was vinciicatini;. Se- 
rondly ; if the prohibitory power granted by the clause, was intend- 
ed to embrace tchile alicnn, it is difficult to account for its exercise be- 
ing defen-ed for the period specified. Tlas limitation is fully explained 
on the principle of a compromise respecting slarc property, and may, al- 
tiioujih with less aptness, consist with the application of the passage to 
the free portion of the coloured chiss ixUo : but we are allogcther at a 
loss for its appropriate meaning in connection with white aliens. Third- 
ly ; the fourth resolution of the s'jrics asserts the power ever uhite 
aliens to be among " the reserved powers of tlie States, and not delegat- 
ed to the V. States," — a position hardly coujpaliblc with the hmgu'igc of 
the clause itself, but still more irreconcileable with the authority given 
to Congress, '• to cstai)lish an uinfornt rule of naturalization," as well 
as the spirit in which that authority has been carried into etfect. Tho 
confounding of the word vtigraiionti'xih emigration in this explanation, 
IS of minor importance; but considering the earnrs/ rc/erj/jo/» of it in 
this section by tho framers of the Constitution, its grammatical use may 
not be unworthy of some attention. 

We venture these strictures with the less diffidence, as public confi- 
dence in the soundness oi the general doctrine of the Resolutions and Ke- 
I)ort has gratoly abated of late. We allude to the complete overthrow 
o( nullification by the powertuldemi,'nstrationsofa distinguished Sciuitor 
when that heresy was mainly rested by its champions upon the author- 
ity of these Vircmia proceedings.* We are willing, however, to ac- 
cede lo this construction, so far as it denies the propriety of restricting 
the meaning of the clause to the shire trade ; for to that extent it is now 
fortified by high, and, perhaps, more dispassionate authority. 

We have now come to the celebrated case of (Jibbpns ». Ogdcn,t in 
which this provision of the Constitution was doliborat/'ly considered in 
the light of an illustration of the question at issue. The Chief Justice 
assents to the |)osition of the counsel for the appellee, that this section 
of the Constitution is an exception, for a limited period, in favour of the 
States, of the power over commerce granted to the General Govern- 
ment ; nor docs he deny the continuance of the prohibitory power in the 
States over the f>orsons mentioned in the section. But he mainiains 
tiiat the word migration lias reference to navigation as a branch of com- 
merce, and may be viewed as descriptive of "voluntary arrivals'" — 
whether the transportation be by land, or water, or both, — and wheth- 
er the intercourse be with a foreign nation, or only bctu-een the States. 
We extract a portion of his opinion ; " Migration applies as appropri- 
" atcly to voluntary as importation docs to involuntary arrivals ; and so 

19 \Vl...-af. 1. 
* Sec \\'<-bs(er's speeches on Foote's and Callioiin's resolutions. Mr. Mndison has 
disclaimed all afliiiity between these IJusolulions nud Report anil tlie South Carolii'" 
doelrine, hut the advocates of that doetiir.c still maintain their intimate connection. 

Qiiis judicabit !* 



19 

" far as an exception from a posver proves its existence, this section 
«' proves that the power to regulata commerce appUes equally to the 
" recrulation of vessels in transpyrting men, who pass from place to place 
"vduntarUi), and to those who puss involuntarily." Again: "The 
« sense of the nation on this subject, (commerce,) is unequivocally mani- 
" fasted by the provisions made in laws for transporting goods, hy land, 
" between Baltimore and Providence, between N. York & Philadelphia, 
"and between Philadelphia and Baltimore." There is no intimation 
given by the Chiet Justice that the word migration is in any sense ap- 
plicable to slaves. If this be the true import of the clause, it is not ea- 
sy to see how the present existence cf the prohibitory poicer of the States, 
is reconcileable with the privileges of mutual trade apd intercourse claim- 
ed by their respective citizens under other provisions of the Constitu- 
tion. The view taken by this enlightened jurist, it is observed, brings the 
personal intercourse of the citizens within the operation oi the clause : 
but if the commerce and intercourse of the citizens of the States are 
protected by the Constitution, or the laws of Congress under it, surely 
no State can defeat those privileges by prohibiting the right of ingress 
to citizens of the other States, it follows, therefore, either that the 
prohibitory power of the States has ceased, as being inconsistent with 
powers delegated to the United States, or that it must be restricted to 
persons and objects over which the delegated powers have not been ex- 
tended. We knov/ not that the absolute ces'sation of this important 
State power has ever been seriously asserted; and if it is to be confined 
in the range of its exercise as stated, we know no class o{ persons 
over whom it can be so beneficially employed for the State as the 
free people of co'ovr. 

The opinion of Justice Johnson in the same case contains a very li- 
beral view of this clause of the Constitution. "Although," says he, 
" the leading object of this section undoubtedly was the importation of 
" slaves, yet the words are obviously calculated to comprise persons of 
"all description'!, and to recognize in Congress a power to prohibit, 
"where the states permit, although they cannot permit when the stales 
prohibit." Here is a plain acknowledgment of the continuing pro- 
hibitory right of the stales; and the phrase ;;er60??5 q/" nil descriptions, 
shews, in the understanding of this respectable member of the court, 
that with regard to that class of its objects specified in the clause, its 
range is not confined to very narroio iimita. In the succeeding para- 
graph of this opinion " personal intercourse" is also noticed as compris- 
ed among the objects of the prohibitory power delegated in the section ; 
by which we are left under the same necessity of giving up the state 
power altogether, or placing the " migration'''' of the free coloured ranks 
within the sphere of its exercise. Such are some of the prominent lights 
shed upon the provisions of the Constitution touching the subject of this 
enquiry ; the result of which tends to strengthen the conclusion, that the 
" privileges and immunities" guarantied by that charter, are confined 
exclusively to the while race. 

We are sensible that in applying the rule of interpretation here con- 
tended for, difficulties may arise out of the various shades of colour 
that pervade the human family : but however en.barrassmg these may 
prove, as tiiey can involve only questions o^ fact they should have no 
force in deternrining the law. The same obstacle may have opposed 



thepxooitionnf the law ofl^Ol for tlip ;TovPrnmont of the Louisiana 
Territory, and may be daily prespntod to thf» oxfrtitinn of the natural- 
ization laws; but who would nssert that these laws havo hoenf/ierrfoieah. 
rojjated, or that tl>oir plain njoiuiini; h;is rhati^od I With if^artl to tho 
rnns.i of tlie coloured i>opu!ati'ri in the [:. States, the npplirntion of the 
rule will Ik? easy ; an I where tlie natural mark of inferiority is so faintly 
impressed as to leave a decided predon)inance of the wliife blood, a 
lil)eral jud-je would hardly feel it n duty to repel the applicant. The 
learned coinrrT^ntator of New Y'4)rk remarks, in reference to the natural- 
ization law, "I presume it excludes the inhabitants of Africa and 
*' their decendants, and it may Itocome a question to what extent per- 
"sons of mixed blood, as muJatloes, are excluded and what shades and 
"de^rrees of mixture of colour disqiialifv an alien from application for 
" th" hsnetits of the act of naturalization. Perhaps there miiiht be diffi- 
*• culties als » as to the copper oloured natives of America or the vcl- 
•* low or tawny races of Asiatics, th')u;;h I shf»uld doubt whether any of 
" them were " white persons" within the purview of the law." * It' wo 
are to form our opinion from this pa«5sn;Lrc, the worthy chancellor would 
not be likely to act the part of a liberal law judge in enforcing our 
views of the Constitution. 

In makin^r these relleclions wc have had no predilections to gratify — no 
favourite project tf) further, separate from the general welllire of the 
American community. Our enr|iiirirs have been guided by an earnest 
regard to truth; and the conclusion to which thev have led, has been 
adopted more with feeling of reluctance than cordiality. VVe compas- 
sionate the situation of the coloured man amongst us, but we arc well 
convinced that it must ever continue to be, mider this government, 
one of political and civil inferiority. Should the competent expound- 
ers of the laws chance to decide that he is entitled to the privileges of 
citiz'^nship, cfii bono the decision ? The law of popular feelinc — al- 
ways transieridant — woidd promptly reverse it. 'J'he distinction of the 
two races is a nnhirnl one : nrlificinl rules may disaffirm, but they 
can never obliterate it. We dwell not on supposed physical and mor- 
al differences, but the colour of the African, alth( ugh'not debasing in 
itself, has become, by circumstances now irremediable here, a badge 
of scrviui le, and must n)rever prevent any general amalgamation of the 
races. We consider all the plans that have been f fTered for this pur- 
pose, connected with immediate alwlition, as ?/> rse than chimerical : — 
proceeding from perverted views of religion and philanthropy, they 
are essentially fraught with the heaviest evils to both classes of the po- 
pulation ; such we believe too is the deliberate judgment of every one 
who has carefully and dispassionately wcijihed the subject ;§ and we 
venture topssert that tho.-,e who arc loudest in the cause of abolition 
would l)e, ifthe public mind favoured the measure, the very last to take 
the " homeless Lybian" to their arms and make him a sharer of their 
blood and destiny. 

• 2 Kent. Com. 6. 
fj Gen. Flnrpoi's I.cltcr to Srct. of Col. Soo. 1 K17. WalMi'e .\ppeal p. 300, N. A. R»- 



21 

PART III. 

Political rights of the Free Blacks in Femisyhmnia. 

It follows from the foregoing views, that every state in the union pos- 
sesses the sovereign power of prohibiting the ingress of the coloured in- 
habitants of the other states. In some districts of Penn'a, and in other of 
the free states, that class are admitted to political privileges ; but the 
power of the state mentioned, is not the less perfect on that account, 
nor would it he impaired were they fully invested with local citizenship. 
For the power operating upon the coloured residents of other states, 
who are 7iot comprized under the term citizen in the Federal Constitu- 
tion, they cannot claim exemption from it on account of any thino- in 
the government or laws of the states exercising it, to which they 
have never been subject. 

But let us briefly enquire what is the true political rank ofthe free 
blacks in Pennsylvania ; as it is chiefly with a view to the interests of 
that state that these sheets are written. This is a question that has al- 
ready produced some speculation, and on which we believe there are 
different opinions entertained by inteligent men. On account of the 
smallness of their number during the proprietary government, there are 
but few references to the free coloured inhabitants of the province in 
its early legislation. From these, perhaps nothing can be gathered that 
is decisive of their claims to membership in the body politic. It was 
not until after the revelation, when by their increase they had acquired 
some importance in the state, that they came to be the subject of spe- 
cific legislative notice; and, from that era, whether we form our 
opinion upon the general sentiment of the community, or the manifest 
spirit of its laws, we cannot avoid the belief, that they have had no just 
claim to the rank of citizens. 

That the coloured man is clothed with the political rights and privi- 
leges of the white man, is an opinion, that, as lar as we are informed, 
never genernl/ij prevailed in Pennsylvania. He has always been viewed 
as a quasi freeman only — deriving his imperfect freedom from the will 
of the white community, and enjoying it under their government rather 
by toleration than rig/if. His occupation is usually menial — his social 
and civil grade below that of the meanest white man ; and, by the stern 
law of common consent, he is absolutely ineligible to oflice — adissabilitv 
utterly at war with the rights o? cilizensliip under a government where 
places of profit and trust are, politically speaking, accessible to the whole 
body of citizens. 

But the general sense of the state has been more clearly signifled in 
its laws. The electoral privilege — which we have before spoken of as 
the highest evidence of genuine political freedom — was conferred by the 
proprietary government on tha ''■'freemen" of the province ; and tha 
laws accompanyning the charter to Pcnn ascribed that character to per- 
sons who had been " servants or bondmen and are free by their ser* 



22 

vice,"* There b?iiig at that period, probably, none of tlie African race 
in the province who were not enslaved, they could not be considered 
within the description of these laws : and, indeed, had there l)een a man- 
umilted class, the description evidently contemplates a freedom acquir- 
ed hi/ the eipirntion of a contract for n limited service. 

It is provided in the 1st chap, of the Frame of Government adopted 
bv the pf^o^le of the Stale, in the year of the Declaration of Iiide|)cn- 
dence, "That all elections ought to fie free, and that all free men, hav- 
inc a sufficient evident common interest with and attachment to the 
community, have a right to elect oiricers, or be elected into otTice ;"§ — 
and bv the 47th sect, of the 2d chap, the elective franchise is confer- 
red upon " the freemen in each city and county respectively." In seek- 
ing for the definition of the word " freemen," in this passage, it is 
obvious that reference must Ix; hud to the qualifying language employ- 
ed in the previous one, and that no one can be considered as coming un- 
der that denomination who has not the common interest and ntluch- 
mtnt there required. — Could tiic character, then, with any propriety 
be accorded to the coloured ranks? — Were thej/ not, and are they not 
stilt, by all that can blunt sensibility and alienate the heart, a reckless 
dismifccted class? lie cannot feel a common interest with a commu- 
nity whose interests he is doomed to subserve ; and where is the hope 
of his attachment, when the reward which it meets is nothing but so- 
cial and civil degradation, and a denial of all participation in the gov- 
ernment, its honors, its offices and its profits? The laws which 
followed, to give effect to this frame of government, have a manifest 
relation to the rt/iena'er/ condition of the coloured people. Soon after 
the adoption of that ffovernnient, it was judged expedient to secure, by 
some nif^asurt', the fidelity of the citi'/x-ns, who hud just been released 
from subjection to the British crown. For this purpose, laws were 
passed in several successive years + nEQUiaiNo the inhabitants to take 
an oath of allcirirmcc to the frovernment ; but these laws were express- 
ly restricted to the " male \miite inhabitants." Now as we cannot re- 
gard this oxcniption of the coloured class as a testimony in favor of 
their superior loyalty to a government which they had no agency in 
establishing, it can only be r;"ceived as evidence of their political dis- 
franchisement. The :^'^me conclusion is to be drawn from the law of 
178o, prescribing t!)C: qualifications of electors : by which the most es- 
sential property of the citizen is denied also, in terms, to the whole 
order of coloured inhabitants.]! Although these laws were repealed 
by a subsequent act of 1789, abolishing tests, the repealing act only re- 
moved disabilities which they had created, and, of course, in no wise 
affected tiie condition of the coloured race, who were expressly absolv- 
ed from their operation. 

The act of 17S0 for the abolition of slavery in the Commonwealth 
was passed also, in part, to ameliorate the condition of the black free- 
man. Bv the 7th section it is provided, that the oflences of coloured 
freemen shall be subject to the same rules of trial that are applied to 
those of white inhabitants; and as this law preceded the disqualifying 
law last mentioned, it could not have intended to bestow privileges up- 

• Conventions of Penn'b psge 20-27. § pa^e 56. \ Sess. J 777, 1 77.1, 1 779. 

I S«e Dallas' editio* of Law» for ihe rifertacc to iheit- nets, and Ail<lisoii'» essayt. 

MB 1 n Q 



23 

on this class which that law, by express language withholds, nor 
any, indeed, but the one here specified ; while, in itself, it conclusively 
negatives the pre-existing claims of that class to equality with the 
white race. 

It was after these repeated and solemn declarations of the soveriegn 
will of the Commmonweaith, respecting the political grade of its col. 
cured inhabitants, that the present Constitution of Pennsylvania was 
formed. After the manner of the federal Constitution, it furnishes us 
no definition of the words citizen and freeman employed in it, but leaves 
them to be understood according to their established acceptati'in. That 
acceptation we have brieflly endeavored to shew has exclusive reference 
to white residents. 

If there is any thing that can add to the force of these views, it is 
the construction of the Constitution adopted by the legislature on the 
subject of the militia system. The 11th sec. of the 6th art. of the 
Constitution provides, that " the freemen of this Commonwealth 
" shall be armed and disciplined for its defence."' The section is impe- 
rative, and xcithovt discriminution, saving only the necessarily implied 
one of years; yet, the Legislature, in executing its commmand, has 
passed laws restricting the duty of the soldier to "white male per- 
sons." These laws are therefore a violation of the Constitution, in 
not equally apportioning the burdens of the State, or else the term 
freeman, in the section cited, does not comprise the coloured population. 
The former position we believe has never been seriously maintained ; 
while the latter is supported by the universal acq'.?iescence of the citi- 
zens* 

We have already alluded to a prevailing custom in some parts of the 
State of admitting black freemen to the elective franchise. To fault 
the generosity of this custom forms no part of our object ; but we hes- 
itate not to pronounce it destitute of all legal foundation. The qualifi- 
cations that bestow that valuable property ot the citizen, the black is 
not only unpossessed of, but without the capacity to attain. Enjoying 
the protection of the government and laws over both his person and pro- 
perty, the common tribute of the resident and his property may be ex- 
acted in return, without afiecting his political grade. A law higher 
than. human, connected, under a permissive Providence, with fortuitous 
causes infringing the natural rights of his race, has effectually, if not 
permanently, debarred him from the rank of a Constitutional citizen. 

The provisions of a kw that would afford an adequate safeguard to 
the State against the incursions of the debased caste from other States, 
we venture not to prescribe. It will, doubtles, demand much delibera- 
tion, as the object is one both of difficult and painful accomplishment. 
We are only afraid that it may require an infusion of rigour, nothing 
short of that by which the unhappy exiles are driven from their native 
soil. 

We cannot conclude this diss^tation without pointing the homeless 
outcasts to the asylum provided in the land ot their ancestors. There, 
in a genial climate, the fullest freedom joined to the various blessings 
of civilization are holdout to them. By the untiring efforts of the Col- 
onization Society, supported by princely acts of private munificence, 
the Colony at Liberia is now iir.'Bly and prosperously established. Tha 



24 

colonists are daily prowinf; in numbers; distinguished for their morali- 
ty and good order; reaping the rich prnducis u( n fertile soil ; enjoyin" 
a lu:nitive comuisrce, and anin)atcd by every prospect that can ensure 
stubihty and liappiness to u community. If they reject a provision for 
their independence and comllirt so alhirintj, we would shudder to pre- 
dict their destiny. We are aware that the means of that Society are 
yethinited; !)ut how is this just and high minded repubMc to repair 
the injuries it has inflicted upon an unoiri-nding and unprotected [icopte; 
how is it to advance the '' general welfare " of its own citizens, and 
shield them in the distant vista of ages from events that the heart fails 
to drtclt upon ? How, belter, than by now extendirig the national arm 
to sustain the weakness of this benevolent and patrirdic association ?* 
The theme is not one to be mi-rged in Constitutional scruples, or bar- 
rcn asseverations of want of power : it entwines itself around the national 
weal and connects it, indissolubly, with the Liberian settlement. If tho 
infant arm of benevolence now raised in this lofty enterpri/.c, be suffer- 
ed to fall palsied fir the want of national aid, the renown of this nation 
may not fall simultaneously, but we should remember that it can endure 
only while the ascendency between the races remains where it is. 

• \Vc know lliat (lie )iIiiti»c "p-enrfaltrrffare," is, in its npprovcil sciisi-, connected 
y'nh the taxing pover, bill hs llif niii rcqiiireti liy the CnlonizHlionSouiety is peninia- 
ry, it i» to llic t<xin^ power lli»t ils ntcessilii-s make \\\v ii|i|ieHl. But t-vcrv ob- 
jection woulil he obMuicil by an ituiciiviiacul of lite Couslituiioii, or a gcucrul co-o^ic- 
littiou of tiic bluits. 



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